download. The special counsel's investigation, which remains ongoing, has yielded a multitude

of criminal prosecutions, including two sets of grand jury indictments against alleged Russian

operatives. See Indictment, United States v. Netyksho, No. 18-cr-215-ABJ (D.D.C. July 13,2018),

ECF NO.1; Indictment, Internet Research Agency, No. 18-cr-32-DLF.

3The word "troll" has taken on a new meaning in the age of social media. See Merriam-Webster,Welcome to the New Words (Sept. 2017), https://www.merriam-webster.comlwords-at-play/new-words-in-the-dictionary-sep-2017 (announcing an expanded definition). In this context, the termmeans "to harass, criticize, or antagonize (someone) especially by provocatively disparaging ormocking public statements, po stings, or acts." See id.

4 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 5 of 50

In the first of those cases, a grand jury on February 13, 2018, indicted three Russian

companies and thirteen Russian nationals, linking them to an extensive campaign to conduct what

participants allegedly described as "information warfare against the United States of America."

Indictment at 6, Internet Research Agency, No. 18-cr-32-DLF. The indictment accuses a St.

Petersburg-based organization known as the Internet Research Agency of spending millions of

dollars and employing hundreds of people to post divisive and inflammatory material on social

media sites in 2015 and 2016. See id. at 5. Operatives allegedly created hundreds of phony

accounts and group pages on Facebook, Instagram, Twitter, and other social media platforms. See

id. at 14-15. As the U.S. presidential nominating contests were heating up, participants purportedly

used these accounts to disparage candidates the Russian government disfavored, while promoting

those it preferred. See id. at 17. Other posts encouraged members of minority groups, including

African Americans and Muslims, to boycott the election or vote for a third-party candidate. See

id.atI8.

The indictment also asserts that, between April 2016 and November 2016, members of the

4 See also Elizabeth Dwoskin et aI., Russians Took a Page from Corporate America by UsingFacebook Tool to ID and Influence Voters, Wash. Post (Oct. 2, 2017), https://www.washingtonpost.com/business/ econom y/russians- took -a-page- from -corporate-america- by -using-face book-tool-to-id-and-influence-voters/2017 /10/02/681e40d8-a7c5-11 e7-850e-2bddI236be5d_story.html ?utm_term=.ac9c5084a797 (explaining Albright' s findings).5 In this context, the phrase "social engineering" refers to the use of technology "to swindle peopleand manipulate them into disclosing passwords or bank information or granting access to their

6 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 7 of 50

Testimony by senior counsel for the Democracy Program at the Brennan Center for Justice

during a Maryland House of Delegates committee hearing on the Act indicated that Russian

operatives had Maryland residents, in particular, in their crosshairs during the run-up to the 2016

Manipulation of Humans a Computer Fraud?, 22 Fidelity L.J., Nov. 2016, at 1,4-5.6 A Brennan Center attorney, testifying in favor of the bill at the House committee meeting, saidthe bill was needed both to stymie Russian threats to the state's democratic processes and to combatattempts by other foreign governments and their nationals to funnel money to super PACs toinfluence state elections. See Hearing on H.B. 981 (statement of Democracy Program Senior

7 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 8 of 50

Sess. (Md. 2018) (statement of Del. Alonzo Washington) ("This bill is made to make sure that

these types of acts do not happen here in the state of Maryland."), available at

Another bars political ad buyers from using foreign currency to make their purchases.? See id.

S 13-405.2(b).

The Act's other revisions to the state's election law, which Plaintiffs challenge here,

impose a series of duties on "online platforms" that feature paid political ads. The Act defines

"online platform" as

any public-facing website, web application, or digital application,

including a social network, ad network, or search engine, that: (1) has 100,000 or more unique monthly United States visitors or users for a majority of months during the immediately preceding 12 months; and (2) receives payment for qualifying paid digital communications.

ld. S 1-101 (dd-l). For sites that come within this definition, the Act imposes what essentially boils

down to two requirements. The first, which I will refer to as the "publication requirement,"

obligates the online platform to post information about political ads on the platform's own website.

See id. S 13-405(b). The second, which I will call the "state inspection requirement," imposes on

the platform a duty to keep records in connection with each qualifying ad and make them available

to the State Board of Elections upon request. See id. S 13-405(c).

The publication requirement is found in section 13-405(b) of the Maryland Election Law.

Under this provision, an online platform that agrees to place a "qualifying paid digital

? Plaintiffs assert that the currency restriction is itself an unconstitutional restraint on speech. SeeCompI. ~~ 69-71, ECF NO.1; PIs.' Mem. 22 n.l5, ECF No. 9-1. However, neither the Complaintnor the memorandum in support of the motion for preliminary injunctive relief cites any authorityfor this contention. Plaintiffs have not explained how this restriction trenches on their free speechrights, given the ready availability of currency conversion services. While I cannot rule out thepossibility that Plaintiffs' argument might succeed on the merits on summary judgment or at trial,I am not persuaded that Plaintiffs have met their burden at this stage of the proceedings.Accordingly, the request to preliminarily enjoin enforcement of section 13-405.2 is denied.

9 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 10 of 50

communication"8 (which, for the sake of simplicity, I will refer to as an online "political ad," or

just "ad") must compile information about the transaction, which, as a general matter, must include

the buyer's identity and the total amount paid for the ad. See id. 9 13-405(b)(6)(i)-(ii). The

platform must post this information, in a searchable format, within 48 hours of the purchase,9

placing it "in a clearly identifiable location on the online platform's website." Id. 9 13-405(b)(1)-(3). The information must remain on the platform's site for at least one year after the general

election to which it relates. See id. 9 13-405(b )(3)(ii).

The state inspection requirement, found in section 13-405(c), imposes separate record-

containing the following information:

(i) the candidate or ballot issue to which the [ad] relates and whether [it] supports or opposes that candidate or ballot issue; (ii) the dates and times that the [ad] was first disseminated and last disseminated;

(iv) an approximate description of the geographic locations where

the [ad] was disseminated; .(v) an approximate description of the audience that received or was targeted to receive the [ad]; and (vi) the total number of impressions generated by the [ad].

Id. 9 13-405(c)(3). These records must be maintained for one year after the general election and

must be turned over to the State Board "on request." Id. 9 13-405( c)(1 )-(2).

8 The statute defines "qualifying paid digital communication" as "any electronic communicationthat: (1) is campaign material; (2) is placed or promoted for a fee on an online platform; (3) isdisseminated to 500 or more individuals; and (4) does not propose a commercial transaction."Elec. Law 9 1-101(11-1).9 Platforms that can demonstrate that the 48-hour publication requirement "presents anunreasonable burden" may seek a compliance waiver from the State Board of Elections. Elec.Law 9 13-405(b)(5).

10 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 11 of 50

The publication requirement and state inspection requirement are functionally distinct, but

they operate as part of a single scheme. To facilitate compliance with both obligations, the Act

requires online platforms to provide ad buyers with a way of notifying them when an ad they are

seeking to place comes within the statutory definition of a "qualifying paid digital

communication." See id. S 13-405(a)(3). The Act puts the onus on ad buyers to provide the notice

to the platform at the time they place the ad, see id. S 13-405(a)(l), and to supply the platform with

the information it will need to comply with both the publication requirement and the state

inspection requirement, 10 see id. S 13-405( d)(l). The platform does not incur any duties to publish

information on its website or make records available for state inspection unless and until the buyer

unconstitutionally vague and that it authorizes an unconstitutional seizure of papers in violation of

the Fourth Amendment. See id. Finally, they assert the Act is preempted by the Communications

Decency Act of 1996, 47 U.S.C. S 230. See id.

The parties have fully briefed the motion and presented arguments at a hearing on

November 16,2018.13 See ECF Nos. 9,9-1,24,31,37.

DISCUSSION

A preliminary injunction serves to "protect the status quo and to prevent irreparable harm

during the pendency of a lawsuit, ultimately to preserve the court's ability to render a meaningful

Holdings, Inc.; Ogden Newspapers of Maryland, LLC; Schurz Communications, Inc.; andMaryland-Delaware-D.C. Press Association, Inc.12 Plaintiffs also seek to enjoin the State from enforcing S 13-405.1, which authorizes the stateadministrator of elections to investigate potential violations of S 13-401 and S 13-405. See Md.Code Ann., Elec. Law S 13-405.1(a).13 The Campaign Legal Center and Common Cause Maryland submitted a brief as amici curiae insupport of the State and appeared (at the Court's request) at the November motions hearing. SeeECF No. 28. I appreciate the skillful written and oral presentations of counsel for the parties andamici, as well as their professionalism in their dealings with each other.

U.S. at 19. Spending limits, the Court stated, are sure to reduce "the quantity of expression by

restricting the number of issues discussed, the depth of their exploration, and the size of the

audience reached." Id. Accordingly, the Court held that the constitutionality of a spending

limitation "turns on whether the governmental interests advanced in its support satisfy the exacting

scrutiny applicable to limitations on core First Amendment rights of political expression." Id. at

44-45. The Court has since clarified that the phrase "exacting scrutiny,"14 as applied to spending

restrictions in political campaigns, was synonymous with "strict scrutiny," requiring the

government to demonstrate the restriction "promotes a compelling interest and is the least

restrictive means to further the articulated interest." McCutcheon, 572 U.S. at 196-97; see also

lndep. lnst., 812 F.3d at 791-92.

By contrast, the Buckley Court found that contribution limits - i.e., regulations limiting the

amount of money a person or group may contribute to a candidate or political committee - were

less worrisome, reasoning that these types of regulations entail "only a marginal restriction upon

14The Court's application of the phrase "exacting scrutiny" has not always been exacting in itsown right, leading to considerable confusion. Scholars have noted the Court has at times used"exacting scrutiny" and "strict scrutiny" interchangeably. See Recent Case, Minn. CitizensConcerned/or L((e, Inc. v. Swanson, 692 F.3d 864 (8th Cir. 2012) (en bane), 126 Harv. L. Rev. 1715,1720-21 (2013); see, e.g., McCutcheon, 572 U.S. at 197 (defining "exacting scrutiny" in away that mirrors the familiar test for strict scrutiny); Burson, 504 U.S. at 198 (same); see alsoMcIntyre v. Ohio Elections Comm 'n, 514 U.S. 334, 347 (1995) ("When a law burdens core politicalspeech, we apply 'exacting scrutiny,' and we uphold the restriction only if it is narrowly tailoredto serve an overriding state interest."). As I will shortly explain, though, however confusingly theCourt has used "exacting scrutiny" in other contexts, it is understood that the term has a meaningall its own in the context of campaign finance disclosure requirements. See John Doe No. 1 v.Reed, 561 U.S. 186, 196 (2010); Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990,1005 (9thCir. 2010). In this context, the term connotes a standard of constitutional review that is lessrigorous than strict scrutiny, one that simply requires the government to show "a 'substantialrelation' between the disclosure requirement and a 'sufficiently important' governmental interest."John Doe NO.1, 561 U.S. at 196 (quoting Citizens United, 558 U.S. at 366-67).

21 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 22 of 50

the contributor's ability to engage in free communication." 424 U.S. at 20. While Buckley did not

precisely articulate a standard for reviewing the constitutionality of contribution limits, see Nixon

year to file a statement with the FEe. See id. at 74-84.

U.S. 724 (2008), a case that tested the facial constitutionality of the federal "Millionaire's

Amendment," which sought to bridge the fundraising gap in races where one candidat~ was

spending large sums of his or her own money. After concluding the Millionaire's Amendment

failed strict scrutiny, the Court considered the constitutionality of an accompanying provision that

required self-financing candidates to make certain disclosures in connection with the Amendment.

See 554 U.S. at 744. Citing to Buckley, the Court concluded - without much discussion - that the

disclosure requirement was unjustifiable because the law it was designed to implement was itself

unconstitutional. See id.

Two years later, in Citizens United v. Federal Election Commission, the Court applied

exacting scrutiny in upholding a requirement that political ads on TV carry a disclaimer identifying

IS The Court invoked Buckley in the course of reviewing a federal campaign finance disclosurerequirement in a sixth case, McConnell v. Federal Election Commission, 540 U.S. 93 (2003),overruled inpart on other grounds, Citizens United v. Fed. Election Comm 'n, 558 U.S. 310 (2010),but the majority opinion does not explicitly articulate the standard of scrutiny it is applying. See540 U.S. at 194-202.

24 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 25 of 50

the individual or group responsible for the ad, as well as a provision requiring anyone spending

more than $10,000 on electioneering communications within a year to file a disclosure statement

with the FEC. 558 U.S. at 366-67.

The remaining two cases dealt with state ballot initiatives. In Buckley v. American

Constitutional Law Foundation, Inc. (ACLF), the Court struck down a Colorado statutory

affected." McConnell, 540 U.S. at 359 (Rehnquist, C.J., dissenting).

requirements. It did not. While the majority's opinion leaves unclear exactly which standard of

constitutional scrutiny controlled in that case,17 its intense focus on the history and particularities

of broadcast media regulations is more consistent with the line of broadcast-specific cases that

followed Red Lion than with the line of campaign finance cases that followed Buckley. This, it

seems to me, cuts against the State's view that the First Amendment treats all election-related

disclosure requirements alike, with no consideration for whether the law at issue regulates political

speakers or third-party media outlets.

ii.

The State's second argument looks to Buckley itself, suggesting its rationale applies to laws

like Maryland's no less forcefully than it does to more traditional campaign finance disclosure

17In the end, the majority appears to suggest it made no difference which standard applied, because"[g]iven the FCC regulations and their history, the statutory [disclosure] requirements must survivea facial attack under any potentially applicable First Amendment standard, including that ofheightened scrutiny." McConnell, 540 U.S. at 245.

29 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 30 of 50

laws that impose no burdens on the press or other third parties. See Defs.' Opp'n 16. Under either

regime, the State argues, the disclosure requirement serves the same governmental interest of

"'providing the electorate with information' about sources of election-related spending." Id. at 17

(alteration omitted) (quoting Buckley, 424 U.S. at 66). The strength of that interest, it asserts,

"does not depend on whether the person required to make the disclosure is the person who made

the expenditure or who received it." Id.

This argument, as I see it, makes the mistake of viewing the government's interest in

isolation from the speaker's interest. It may well be true that the public benefits equally from

information about candidates' finances no matter where the information is sourced, be it from the

political committees themselves or from the press. It does not follow, though, that as a matter of

constitutional law it makes no difference which route the government takes.

The Supreme Court's analysis in Buckley began with the premise that campaign finance

regulations intrude on political expression, which is entitled to "the broadest" First Amendment

protection. 424 U.S. at 14. When, in the course of its per curiam opinion, the Court drew

distinctions among the three strains of regulations in that case (namely, spending limits,

contribution limits, and disclosure requirements), it did not base these distinctions on the strength

of the government's interest. Rather, as the Court later explained in McCutcheon v. Federal

Election Commission, the distinctions were "based on the degree to which each [type of regulation]

encroaches upon protected First Amendment interests." 572 U.S. at 196-97. The less onerous test

for disclosure requirements reflects the Buckley Court's view that these sorts of regulations, unlike

aggregate limits on spending or contributions, "impose no ceiling on campaign-related activities,"

424 U.S. at 64, and are often "the least restrictive means" of keeping the public informed and

deterring corruption, id. at 68.

30 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 31 of 50

The flaw in the State's argument here is that it overlooks the possibility that statutes like

Maryland's might encroach on First Amendment rights more profoundly than ordinary campaign

finance disclosure requirements. This is an error, because to my mind, it is evident that they do.

centers' motion for a preliminary injunction, holding that the notice requirement survived a lower

level of scrutiny applicable to regulations of "professional speech." Id. at 2370.

A five-member majority of the Supreme Court reversed. Id. The majority declined to

follow several circuits' lead in recognizing "professional speech" as a separate category of speech,

explaining:

This Court has been reluctant to mark off new categories of speech for diminished constitutional protection. And it has been especially reluctant to exempt a category of speech from the normal prohibition on content-based restrictions. This Court's precedents do not permit governments to impose content-based restrictions on speech without persuasive evidence of a long (if heretofore unrecognized tradition) to that effect.

33 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 34 of 50

Id. at 2372 (alterations, citations, and quotation marks omitted). The Court concluded the state

had failed to identify "a persuasive reason for treating professional speech as a unique category

that is exempt from ordinary First Amendment principles." Id. at 2375.

Along the way, Justice Thomas's opinion recognized that the Court had, at times, "applied

a lower level of scrutiny to laws that compel disclosures in certain contexts." Id. at 2372. Of note,

in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985),

the Court applied a lower standard to a rule requiring lawyers who advertised their services on a

contingency-fee basis to disclose that clients might have to pay some fees and costs. Justice

Thomas, though, gave Zauderer a narrow reading, holding it applied only to laws compelling

disclosures of "uncontroversial information about the terms under which" advertised services will

be available. Becerra, 138 S. Ct. at 2372 (quoting Zauderer, 471 U.S. at 651). He concluded the

Zauderer standard did not apply to the California notice requirement, as it compelled disclosure

of information about state-sponsored services and concerned a topic - abortion - that could hardly

be considered "un controversial. " Id.

Becerra counsels against the State's position here. First, it reaffirms the bedrock principle

that content-based laws are presumptively unconstitutional. See Becerra, 138 S. Ct. at 2371.

Second, it notes the Court's reluctance to recognize exceptions to this rule, absent "persuasive

evidence of a long (if heretofore unrecognized tradition)" of regulation. See id. at 2372. That

would be difficult for the State to show here, as its briefs make no claims that laws compelling

publishers to make election-related disclosures have much of a history in this country. Lastly,

Becerra signals that pre-Reed precedents according diminished First Amendment protection to

certain categories of speech ought to be read narrowly.

34 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 35 of 50

The State urges me to take the opposite approach here, advising me to apply the Buckley

"exacting scrutiny" standard more expansively than the Supreme Court or any federal appellate

court have ever applied it. My reading of Reed and Becerra persuades me that this would be

improper. The applicable standard, I am convinced, is strict scrutiny. This is the standard I will

now apply.

5.

Under strict scrutiny, the government bears the burden of showing the challenged

regulation "furthers a compelling interest and is narrowly tailored to achieve that interest." See

Reed, 135 S. Ct. at 2231 (quoting Bennett, 564 U.S. at 734).

The State's briefing on Plaintiffs' motion does not bother to argue the Act is capable of

surviving strict scrutiny, placing all its bets on the applicability of the exacting scrutiny standard,

which I have rejected. Nevertheless, at a hearing on Plaintiffs' motion, counsel for the State said

he was "not prepared to concede" the point, arguing that an opportunity to further investigate the

issue through the discovery process might bolster the State's position. Counsel also suggested that

the Act's requirements may yet be "refined" (translation: narrowed) in such a way as to survive

strict scrutiny as the State Board of Elections exercises its power to promulgate regulations under

the Act.

These are not the arguments of a party that is confident in its case. To begin, the issue

before me at this stage of the litigation is whether Plaintiffs' First Amendment claim is likely to

succeed on the merits. See Winter, 555 U.S. at 20. Surely, it can always be argued that discovery

might uncover facts that strengthen one party's position. The State, though, has not identified any

specific points of contention in this case that demand clarification through discovery. The mere,

ever-present possibility that some unknown and unanticipated new facts will emerge to prop up

35 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 36 of 50

the non-moving party's case is no reason to deny the moving party a preliminary injunction that is

otherwise justified.

The State's other argument - that future regulations may refine the Act's requirements - is

equally unpersuasive. The only way regulations could "implement" the Maryland statute in a way

that would allow it to survive strict scrutiny would be to narrow its impact to such an extent that it

would be contrary to what was enacted by the Maryland legislature. But, of course, "[r ]egulations

cannot overrule the statute under which they are promulgated." Kemp v. Seterus, Inc., No. PJM-

Tornillo makes precisely this point, concluding that a "right of reply" statute compelling

newspapers to print a political candidate's response to critical coverage would violate the First

Amendment "[e]ven if [the] newspaper would face no additional costs to comply with [the]

compulsory access law and would not be forced to forgo publication of news or opinion." Id. The

Court explained:

The choice of material to go into a newspaper, and the decisions

made as to limitations on the size and content of the paper, and treatment of public issues and public officials-whether fair or unfair-eonstitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.

Id. This respect for a publisher's right to exercise "editorial control and judgment" is not reserved

for print media alone; it applies with equal force to outlets that publish content on the Internet.

The State cannot - and, in fact, does not - argue that the publication requirement is the

least restrictive means available of achieving its interest in informing the electorate because, as it

happens, Maryland campaign finance laws prescribe other means of obtaining the same

information. These laws require political committees to report all of their expenditures to the State

see Minn. Citizens, 692 F.3d at 876 ("(E]xacting scrutiny is more than a rubber stamp."). The

appellate court explained:

In the First Amendment context, fit matters. Even when the Court is not applying strict scrutiny, we still require 'a fit that is not

42 Case 1:18-cv-02527-PWG Document 38 Filed 01/03/19 Page 43 of 50

necessarily perfect, but reasonable; that represents not necessarily

the single best disposition but one whose scope is in proportion to the interest served, that employs not necessarily the least restrictive means but a means narrowly tailored to achieve the desired objective.

Wis. Right to Life, 751 F.3d at 840-41 (quoting Bd. of Trs. of State Univ. ofN.Y v. Fox, 492 U.S.

469,480 (1989)).

In this context, "exacting scrutiny" does not require the government to show its interest is

"compelling," with all that that word has come to entail in strict scrutiny cases. See Turner Broad.

Sys., 512 U.S. at 680 (O'Connor, 1., concurring in part and dissenting in part) (stating that, under

strict scrutiny, "[i]t is not enough that the goals of the law be legitimate, or reasonable, or even

praiseworthy," but rather "[t]here must be some pressing public necessity, some essential value

that has to be preserved"). Rather, it is enough for the State to show that the strength of its interest

"reflect[ s] the seriousness of the actual burden on First Amendment rights." John Doe NO.1, 561

U.S. at 196 (quoting Davis, 554 U.S. at 744). Here, though, I have already explained that the State

has a compelling interest in the Act's primary aim of shielding its elections from foreign influence,

as well as in its secondary goal of promoting electoral transparency. It necessarily follows, then,

that these interests are "sufficiently important" to conceivably justify a campaign finance

disclosure requirement under Buckley.

The State and amici have each sought to highlight the Act's secondary aim, suggesting that

disclosure requirements must survive exacting scrutiny, as a matter of course, because of their